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Expert’s testimony not fatally contradictory

By: dmc-admin//June 16, 2004//

Expert’s testimony not fatally contradictory

By: dmc-admin//June 16, 2004//

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Walsh

“Given the severe consequences of the [no case] rule, we [] believe that it should be reserved for the most extreme cases.”

Hon. Ann Walsh Bradley
Wisconsin Supreme Court

An expert’s acknowledgement that a plaintiff may not need future care in any given year does not fatally contradict his testimony as to what her average future care would be, the Wisconsin Supreme Court held on June 8.

In doing so, the court reversed a published decision of the court of appeals, Weber v. White, 2003 WI App 240, 267 Wis.2d 862, 672 N.W.2d 151.

Julie L. Weber was injured when her car was struck from the rear by a car driven by Angelene White. Weber was diagnosed with a whiplash injury, and underwent physical therapy. When she did not make a full recovery, she was referred to chiropractor George J. Hanacik, Jr.

Weber eventually brought suit against White, alleging negligence, and claiming permanent injuries. Weber offered to settle for $35,000, pursuant to Rule 807.01, and White offered $20,000. The parties stipulated that White was 100 percent at fault.

Both the original treating doctor and Hanacik testified that Weber was permanently injured and would experience future pain and suffering. Hanacik, however, was the sole witness concerning future health care expenses, and testified she suffered a permanent shoulder impingement, and would need future health care to treat the injury.

Hanacik testified, “Future care for her I would probably say would probably be around 20 to 25 visits a year, probably, on an average. I mean, if it’s better, it’s better. If it’s worse, it’s worse, but when I do it on an as-needed basis, I mean, she comes in when she’s got a problem.”

Hanacik also testified that an average visit costs $60, and that all of his opinions were to a “reasonable degree of chiropractic certainty.”

During cross-examination, Hanacik was asked whether Weber would need 20 to 25 visits a year for at least the next 35 years, and answered, “That is an example of what we’ve seen this year. That does not mean — I mean, next year I may see her only three times. It depends on what is happening with her.”

Hanacik was asked, “So you are not saying to a reasonable degree of chiropractic certainty she is going to be in 20 to 25 times a year for the next 35 years?” and he answered, “No, I’m not.”

Hanacik acknowledged that he could not give a “ballpark figure” as to how many times Weber would need treatment, but iterated that he would provide care to her on an as-needed basis for the injury.

The jury awarded $5,000 for future health care expenses, and a total verdict of $36,278.50. Because the amount exceeded the $35,000 offer, Milwaukee County Circuit Court Judge Thomas R. Cooper awarded double costs and interest pursuant to Rule 807.01.

White appealed, and the court of appeals reversed. Citing Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis.2d 354, 166 N.W.2d 148 (1969), and applying the “no case rule,” the court of appeals held that Hanacik’s testimony on cross-examination fatally contradicted his testimony on direct.

While the matter was being appealed, White filed a motion, asking the circuit court for permission to pay the clerk of courts a portion of the judgment to avoid the accumulation of further statutory interest, but the circuit court denied the relief.

In a separate unpublished decision, the court of appeals affirmed the circuit court’s decision denying that motion.

The Supreme Court accepted review, and, in a unanimous decision by Justice Ann Walsh Bradley, affirmed the denial of the motion offering to pay the clerk of courts, but held that the award of future health care expenses was supported by the evidence.

“No Case” Rule

What the court held

Case: Weber v. White, No. 03-0471.

Issue: Where the plaintiff’s sole expert witness admitted on cross-examination that he could not state to a reasonable degree of professional certainty that the plaintiff would require as much treatment in any given year as she would “on average” over the course of her life, did the evidence support an award of future health care expenses?

Holding: Yes. The acknowledgement that care may be less than the average in any given year does not fatally contradict the opinion that future health care expenses will be incurred to a reasonable degree of certainty.

Holding: Briefs by Thomas W. Kyle, Jonathan P. Groth and Pitman, Kyle & Sicula, S.C., Milwaukee, and oral argument by Jonathan P. Groth, for respondents; brief by Michael R. Vescio and O’Hagan, Smith & Amundsen, LLC, Greenfield, and oral argument by Michael R. Vescio, for appellants.

The court began by reviewing the Ianni decision, and the “no case” rule that it enunciated.

In Ianni, a mother and daughter, who were passengers in an automobile that was involved in a head-on collision, brought a personal injury action against the insurer of the automobile in which they were riding. Six days after the accident, the mother signed a statement
that she did not see any part of the accident because she was asleep.

Approximately nine months later, she signed another statement, indicating that the other vehicle had crossed the centerline and collided with her family’s car. Finally, at trial, Mrs. Ianni testified that her family’s car was traveling at 70 m.p.h. down the center of the road.

The defendant argued that her testimony was incredible as a matter of law. Quoting 32A C.J.S., Evidence 1043, at 832 (1964), the court acknowledged the general rule precluding such testimony: “Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting with no explanation of the contradiction, and no other fact or circumstance in the case tends to show which version of the evidence is true, no case is made.”

Nevertheless, the Supreme Court in Ianni drew a distinction between contradictions in the course of the same in-court testimony from contradictions between in-court and out-of-court statements.

The court observed, “Where the conflict and contradictions are within the body of the testimony given, the ‘no case’ conclusion follows. Where the conflict or contradiction arises by reason of an earlier statement given by the witness, it is for the jury to determine the question of the weight and credence to be given the witness-stand testimony and prior extrajudicial statement.”

The Supreme Court in the case at bar noted, “Thus, the Ianni court ultimately chose not to apply the very ‘no case’ rule it articulated.”

Adding that, although the Ianni “no case” rule has existed for 35 years in Wisconsin, no appellate court has ever applied it, the court held, “Given the severe consequences of the rule, we [] believe that it should be reserved for the most extreme cases.”

The court then declined application of the “no case” rule, concluding the testimony was not fatally contradictory, when viewed as a whole. Instead, the court found the testimony provided the jury with credible evidence to award future health care expenses.

Stating, “the alleged contradictions are contrived,” the court wrote, “two doctors testified that Julie Weber suffered a permanent shoulder impingement as a result of the accident. Dr. Hanacik further explained that she would need future treatment, depending upon her level of activity. Based upon his prior treatment and a review of her medical records, he estimated that her future care would ‘probably be around 20 to 25 visits a year, probably, on an average.’ Despite his statements on cross-examination, he never withdrew from this prediction. Because there is credible evidence from which the jury could determine future chiropractic expenses, we do not disturb its award.”

Accordingly, the court reversed the court of appeals on this issue.

Statutory Interest

Related Links

Wisconsin Court System

Related Article

Case Analysis

However, the court affirmed the decisions by the lower courts not to grant the defendant’s request for relief from further statutory interest.

Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, pars. 18-22, 237 Wis.2d 498, 614 N.W.2d 565, sets forth four factors for a circuit court to consider when asked to grant a stay of a money judgment pending appeal, pursuant to sec. 808.07(2): (1) the issues appealed and the likelihood of success on those issues; (2) the need to ensure the collectibility of the judgment and accumulated interest if the appellant does not succeed on appeal; (3) the interest of the appellant; and (4) harm to the respondent that may result if the judgment is not paid until completion of an unsuccessful appeal.

Applying discretionary review, the court found that the circuit court reached a reasonable decision in applying the factors and denying the motion.

On the first two factors, the circuit court had concluded that the appeal would not be successful, because the “no case” rule did not apply, and that the assets of White’s insurance company rendered collectibility a non-issue.

Considering the third and fourth factors, which look to the interests of the parties, the court found, if the defendants won, there would be no harm to either party, but that, if the Webers won, they would be denied their statutory interest. Finding that this factor weighed heavily in the Webers’ favor, the circuit court denied the motion.

Finding this conclusion reasonable, the Supreme Court affirmed on this issue.

Click here for Case Analysis.

David Ziemer can be reached by email.

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